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Birmingham City Council (202006409)

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REPORT

COMPLAINT 202006409

Birmingham City Council

3 March 2021


Our approach

The Housing Ombudsman’s approach to investigating and determining complaints is to decide what is fair in all the circumstances of the case. This is set out in the Housing Act 1996 and the Housing Ombudsman Scheme (the Scheme). The Ombudsman considers the evidence and looks to see if there has been any ‘maladministration’, for example whether the landlord has failed to keep to the law, followed proper procedure, followed good practice or behaved in a reasonable and competent manner.

Both the resident and the landlord have submitted information to the Ombudsman and this has been carefully considered. Their accounts of what has happened are summarised below. This report is not an exhaustive description of all the events that have occurred in relation to this case, but an outline of the key issues as a background to the investigation’s findings.

The complaint

The complaint is about the landlord’s response to the resident’s request to remove a box which may contain asbestos from her property.  

Guidance on asbestos in housing 

1.     Shelter: According to Shelter, under no circumstances should testing for asbestos, or any work that may create asbestos dust, be attempted by the occupier of a property or by someone who is not qualified to carry out such work. Even if it poses no risk to health, and it is in a sound condition, it is better and safer to live with any potential asbestos within a property rather than to disturb it. A landlord is not legally obliged to act, even though many occupiers might want asbestos to be dealt with so that it can never pose a risk. The presence of asbestos itself does not constitute disrepair – however if it is damaged or if it deteriorates, and there is a risk of asbestos dust being released, then the landlord should act to prevent disrepair arising.          

2.     Health and Safety Executive (HSE):  According to HSE, asbestos should not be disturbed – it is only dangerous when it is disturbed. If it is safely managed and contained, asbestos does not present a health hazard. Asbestos should not be unnecessarily removed as this can be more dangerous than leaving it in place and managing it.

The landlord’s Repairs Policy Document

3.     The landlord says that any matters relating to asbestos are contained in its Repairs Policy Document.

4.     In section B of the Repairs Policy Document, clause 2 says that public sector landlords need to incorporate the requirements of the Housing Act 2004 housing health and safety rating systems (the risk assessment procedure for residential properties), into their stock condition surveys. All homes in the social sector should be free of category one hazards. If a landlord is about to embark on a programme of repair works it should consider whether there are any category one hazards that need to be included in the refurbishment works. Maintenance builders should understand the basic principles of the housing health and safety rating systems.  

5.     Clause 2.2.1. of the Policy Document concerns non-microbial pollutants. It says: “Exposure to asbestos fibres, and manufactured mineral fibres 20-50 years after exposure, constructed date 1946 and 1979, 1920-1945. Unsealed asbestos in disrepair, MMF in accessible positions.” The landlord says that it’s approach to asbestos is contained in the Policy Document but, apart from this wording, there is no other explanation about how asbestos is handled.

6.     Clause 5.1 of the Policy Document Concerns the landlord’s repairs code behaviour. The clause says that repair workers must keep any appointments made. The Policy Document is silent about any compensation payable for missed appointments. 

Background and summary of events

Background

7.        The resident lives in a first floor flat. She initially had an introductory tenancy from 22 November 2010, which became a secured tenancy from 21 November 2011. 

8.     The Ombudsman has seen pictures of the sealed box.

Summary of events

9.        On 27 January 2020, the resident contacted the landlord. The resident told the landlord that a contractor had attended her property, on 2 January 2020, to investigate the box, which is securely sealed to the ceiling of her hallway. The resident said that the contractor had stated that the box could potentially contain asbestos, it needed to be tested in order to determine if this meant it was dangerous and that it could be removed if found to be dangerous. The resident added that someone was meant to visit the property, on 20 January 2020, to carry out an asbestos test, but nobody had turned up on the day. The resident said that she had chased the landlord’s repairs team several times and was told that somebody would contact her to arrange another date, but she was still waiting. The resident requested that the landlord now send somebody to inspect the box.  

10. The landlord replied on 6 February 2020 and explained that, according to its contractor, the sealed box was from an old warm air heating unit, which had previously operated within the property. The contractor had said that because the box was not damaged and not causing any problems, there was no work that needed to be done to it. As such, the box did not need to be tested for asbestos. The contractor’s view was that should the box contain asbestos, in its current state, it would not cause any issues within the property. The landlord told the resident that for these reasons no further action was needed and the matter was now closed.

11. On 7 February 2020, the resident raised her stage 1 complaint with the landlord. She stated that the box was not only potentially dangerous, but it was also taking up space in the property – if she wanted to make modifications, such as moving large items of furniture, the box would be in the way and would make it harder to navigate around. She added that the box had screws which could easily be opened. The landlord acknowledged receipt of the complaint on the same day and told the resident that it would send its reply within 15 working days. 

12. On 18 February 2020, the resident informed the landlord that she had received a reply from the contractor on 14 February 2020. She quoted an extract from the contractor’s reply as follows: “We would need an ad-hoc order to carry out these works. The specification for the replacement of warm air units with a wet system includes for the encapsulating (boxing in) and NOT the removal of the old warm air unit.” 

13. On 18 February 2020, the landlord sent (what appears to be) its stage one decision to the resident. It explained that it had investigated the complaint and was currently awaiting a response from its team who handled ad-hoc (one-off) jobs. It would contact the resident as soon as it received a response. 

14. The landlord had referred the matter to its contractor for investigation, and awaited an outcome. Following deliberations over February 2020, the contractor told the landlord that it “would need an ad hoc order to carry out these works. The specification for the replacement of warm air units with a wet system includes for the incapsulating (boxing in) and not the removal of the old warm air unit. Ad-hoc order needs to be approved and raised.”  However, the contractor did not reply to the landlord’s question about why an operative had failed to attend to the property as previously arranged, on 20 January 2020, to test for asbestos (which was required before the box could be removed). 

15. As well as its 18 February 2020 letter, the landlord contacted the resident on 5 March 2020. It acknowledged her complaint of 7 February 2020, said that the matter had been passed to the relevant people who handle its asbestos matters and that it would be in touch in due course. The 7 February letter also explained that if the resident was unhappy with the landlord’s complaint-handling she could ask for a review, which would be completed within 20 working days.  The Ombudsman notes that both the 18 February and 5 March 2020 communications refer to how the landlord was handling the matter, but it is not clear which one is the stage one decision.

16. The resident asked for her complaint to be reviewed, but it is not clear of the date of her request. However, the landlord sent a stage two decision to the resident, dated 14 May 2020. The decision stated that “our contractors have advised that the box is to do with the old warm air units. As it is not causing any issues and there is no damage to it they have advised that there is no work needed and neither will it need to be asbestos tested as if left alone it will not cause any issues. I understand that our contractors have advised you directly of this. I trust this clarifies the matter.”   

17. The resident responded to the stage two decision on the same day, 14 May 2020, and attached pictures of the box. She said that the landlord’s decision not to remove the box was unacceptable – she did not believe that the box was safe. There was a vent on the opposite side of the box facing the kitchen wall, the floor of the box comprised two pieces with cracks all over and it had screws which could easily be opened. Any impact to the building, plus accidental knocking into the box might cause danger and it was taking up space. She wanted her case to be re-opened as soon as possible.   

Assessment and findings

18.   In this case, there is no evidence to suggest that the resident was exposed to asbestos fibres, or that the box was unsealed or that it was in need of repair because asbestos was leaking from it. The resident said that she was told, on 2 January 2020, by a visiting contractor, that the box could potentially contain asbestos, that it needed to be tested for this and that the box could be removed if it was found to be dangerous. In this respect the contractor was aware of the asbestos guidance and suggested that the box needed to be tested. However, the asbestos test that was meant to be carried out on 20 January 2020, did not take place. The Ombudsman notes that it took the landlord two weeks before it explained to the resident, on 6 February 2020, that the box was safe according to its contractor. 

 

19.   The landlord followed the advice of its contractor, which it is entitled to do. The contractor’s advice was that an asbestos test was not needed because the box was not damaged and, in its current state, was not causing any hazardous problems. This reasoning alone should have been enough to close the matter. However, the resident later added that she also wanted to have the box removed because its positioning was inconvenient.

 

20.   The resident’s stage one complaint was that the box might not only be dangerous as it could be unscrewed, but it was inconvenient to have it in the property. So, by the time of the stage one complaint, it had been established that the box was not dangerous – but the resident still wanted it out of her property. She emphasised the point that the box posed a danger if it was left in place. At this point it would have been good practice by the landlord to send a contractor to carry out an asbestos test to put the resident’s mind at rest. However the Ombudsman does not consider this to have been a failure in service by the landlord because its contractor had already established that the box was not unsafe. The position at that stage was that the resident could not have the box removed until the landlord arranged an asbestos test and then, depending on the results, provide its contractor with an ad-hoc order to remove the box. But, the planned asbestos test of 20 January 2020 never happened. In the Ombudsman’s opinion, a replacement test could have been carried out as a matter of courtesy, especially since it did not inform the resident before the 20 January 2020 test date that the test was not going to be carried out after all and since there was no procedural compensation payable for a missed appointment.    

 

21.   The contractor told the landlord that it would need the landlord to issue an approved ad-hoc order to remove the box because this type of work was over and above the work they would normally complete when a heating system is replaced – but an asbestos test needed to be carried out first. By the time of the stage two decision, the landlord had told the resident that an asbestos test was not needed because the box was fine if it was left alone.

 

22.   The resident believes that the landlord’s decision to leave the box in place is incorrect. In the Ombudsman’s view, the decision is not incorrect, because it has not been established that the box definitely contains asbestos or that it is dangerous – plus, the landlord is within its rights to accept the advice of its contractor that the box is safe. However, the Ombudsman believes that the landlord could go one step further to reassure the resident by arranging a further inspection of the box and its condition. The Ombudsman has therefore made a recommendation to the landlord, below.  

Determination (decision)

23.   In accordance with paragraph 54 of the Housing Ombudsman Scheme there was no maladministration by the landlord in respect of its response to the resident’s request to remove a box, which may contain asbestos, from her property.

 

Reasons

24. There was a delay of two weeks between 20 January 2020 (the date that an  asbestos test was due to be carried out) and 6 February 2020 (when the landlord assured the resident that the sealed box was safe). However, this delay did not pose an immediate danger because the box is sealed, it is out of reach of the resident and it is attached to the ceiling of her property and therefore not likely to be disturbed.

25. Although the planned asbestos test of 20 January 2020 never took place, there is no evidence of any asbestos in the property that presents any risk to the resident.   She had been previously told there was potentially asbestos in the box, not that the box was definitely unsafe. 

26. The reason that the sealed box was left in place after the landlord’s investigation, was because it had never been established that it was definitely dangerous – there is no evidence that it either contains asbestos or that asbestos has ever leaked from it. The landlord followed the advice of its contractor, which it is allowed to do, which was that the box was safe in its current state.

Recommendations

27. The Ombudsman suggests that the landlord should include clear guidance on how it deals with reports about the presence of asbestos in its properties. The repairs policy should also explain the procedures involved after a resident reports concerns about asbestos within a property. The landlord should make sure these procedures are followed properly. 

28. If it has not already done so, the landlord should consider adding some information about asbestos-related concerns, for its occupants, on its website.  

29. For this complaint, and taking into consideration that the resident was originally advised that the box would be checked, the landlord should consider arranging a contractor to visit the resident’s property to provide a second opinion on the condition of the box.